Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1887-02-19
COUNTY ATTORNEYS.
Full Text Of Attorney-GeneraI Hogs
Opinion in Regard to Certain
Fees in Justices Courts.
When ANY One Pleads Gully, n Justice
has no Need OF q Pro Tenn.
County Attorney.
Charters Filed and acknowledgements
Versus Illuminating Gss-Docs the
Organic Law Need Changing.
CONCERNING COUNTY ATTORNEYS

3
) CONCERNING COUNTY ATTORNEYS
! Special to the Gazette.
+ AUSTIN, Ten, Feb. 1S.-The substance
of Attorney-General Hogg' ; opinion, pub
/ lished III The GAZETTE last week, caused
numbers OF letters TO be sent to his de-
partment from county attorneys, some OF
whom seem to misunderstood the true
| import of the opinion. AttOrney-General
! Hogg requests The GAZETTE to publish
| the opinion in full, 50 that the county at
! torneys throughout the state may have
the privilege Of reading the full text of
the opinion. If rightly understood il will
settle long mooted question relative to
their fees. The following Is the opinion
in full:
ATTORNEY GENERALS OFFICE
February l., 1851
w. a: Hart, Esq, County Attorney Wood coun
! ty, Tex.
SrR-Your letter OF the 18th inst, sub
stantially asks: l. Under what circum-
stances is a justice of the peace author
lied to appoint g county attorney pro
tenn:
,. In what instances can he lawfully
pay the fee of So to any other person than
the county attorney proper when the de
fendan: pleads guilty In his court:
Upon your first question, article 80, c.
| c. z. principally bears. 1t provides for
! the appointment Of q competent attorney
! by the justice a. q term Of the court
when tre county attorney fails TO attend
it. Article 81 of the same code makes
II the imperative duty OF the county
attorney IC attend the terms OF the
Justice court in his county to represent
the stste in all criminal cases under
prosecution before said court.
Properly construed in relation 10 the
! pcint under consideration, articles 30 and
/ 80 contemplate three things:
/ l. That the JUS ices of the peace shall,
/ have terms Ct cour. for the trial Of cri.ni-
nal cases.
2. That the county attorney is the Off
Ger who shall ltend said terms of court
/ to represent tae state.
| ). That in the absence OF She county
attorney TIE ;slice may app0int some
cCmp etcnt attorney TO perform his duties
| for that term of the court or until the
county attorney arrives.
! Justices vi the peace are also permitted
! to try criminal cases over which they have
! jurisdiction al terms other than q regular
term of court.
Constituting articles 10, oil and 50, C.
c. P, the following consistent four con-
ClusiOns are evident aud harmonic upon
this point.
l. That the justice may sit anytime to
try criminal cases over which he has juris-
diction.
2. That when the defendant is brought
before the justice he must, if reasonable,
be given trial within five days if he de
mands it.
3. That the justice must notify the
county attorney OF the tendency of the
prosecution.
WHAT i, is the duty of the county ct
! torney TO attend such trials when so no.
, titled.
Whenever q criminal off4nse which the
! justice mas jurisdiction to try is commit
ted in his view. or Il complaint is filed
againstS person, the Justice is reQuiret
to issue a warrant Tor his arrest which,
amuag Other things, must name 9 time aud
place 9 i rial ArJ. 905, sub. 3, c. c p. I
This Clearly suggests { remedy for the
apparent difficulty which msy spring
from artiCie 9Il, wherein the defendant
Is eGtitleG 10 trial within fife days after
he has been drought before the Justice"
By his warrant the justice must set q
time and place for the defendant 70 be
brought before him. In ordinary cases
the law certainly intends that the trials
shall he had at regular tim fixed there
for. In pressing cases las when the
defendant is transient person, or
is unable to give bond, etc, it is evil
IDENTIFY the Justices duty to we the &C
cused brought before him at the earliest
! possible time stated in the warrant, 81
which he can, By proper notice, procure
the attendance OF the lawful county at
tOrnev to represent the state 10 the tria!
OF the case. Ia such cases, when the
county attorney after notice fails to ap-
pear, the justice would be authorized to
appoint lawyer to prosecute the case,
| If necessary; but he needs no
attorney, and cannot lawfully appoint
one where the accused in such cases
pleads guilty.
| More succinctly stated: In two emer-
| gencies justice OF the peace can appoint
county attorney pro TEN.
| |. At and during regular term OF the
court, when the county attorney fails 10
attend.
2 In the trial OF all other cases in
which the county attorney fails to ap-
! pear after due notice.
| The appointee at regular term is en-
! titled to all fees and commissions due q
county attorney arising from pleas of
| guilty and convictions. In other instances
he can only receive the fees aad commits
sions in cases which he prosecutes and
conv!cts.
| Your second question is necessarily in
volved and to some extent settled by the
| foregoing conclusions. Under article
1899, c. P, a fee of So shall be
allowed county or district
attorney in each and every case of plea
of guilty before justice OF the peace,
when ne is present and represents the
state, or has t4kel some action in the
case for the state. A county attorney
pro ten, during the term If court for
which he has been appointed, is entitled
to this fee in each plea of gailty, but not
at any other time.
p, By virtue CT their Official
positions the county and